No sale or purchase done of ghee.

1. The petitioners are the President and members of the Travancore Devaswom Board, who have been arrayed as accused persons 3, 4 and 5 in S.T.No,175 of 1997 on the file of the Judicial First Class Magistrate, Ranni, a case instituted on a complaint by the second respondent, the Food Inspector, Ranni-Perinad Panchayat, Pathanamthitta Cirle alleging an offence under the Prevention of Food Adulteration Act.

2. On 8.1.1997 at about 4 p.m. the second respondent Food Inspector, Ranni Peinad Panchayat, Pathanamthitta Circle inspected the Devaswom premises in Sabarimala. He found four tanks of Ghee stored for preparation of Appam and aravana. The Store Superintendent of the Devaswom, named as first accused in the case, told the Food Inspector that the ghee was kept in the tank after completing the final purification process and was ready for supply. The Food Inspector asked for 450 ml. of ghee from the Superintendent and obtained on pay of Rs.45 as its cost and issued cash receipt for the purpose and divided the ghee into three portions packed and sealed it as per rules and sent one sample to the Public Analyst. On receipt of a report that the sample does not conform to the standards prescribed for ghee under the Prevention of Food Adulteration Rules, the complaint was filed before the learned Magistrate impleading the Store Superintendent as the first accused. Executive Officer of the Devaswom as the 2nd accused, President and two members of the Board as accused 3 to 5 and the Devaswom Board itself as the 6th accused, in the complaint the 6th accused was shown as represented by accused 3 to 5, the President and two members of the Board.

3. On receipt of summons from the court, the petitioners who are accused 3 to 5 in the case entered appearance on 17.3.1997. Though the 6th accused was shown as represented by accused 3 to 5, the learned Magistrate noting that there was no appearance for the 6th accused directed issue of warrant for arrest. The petitioners herein filed an application for recalling the warrant stating that they had already appeared. The learned Magistrate dismissed the petition by order dated 20.3.1997 stating that the 6th accused had not filed any vakalath and there was no appearance for the 6th accused, so the issue of warrant was justified. This petition is filed under Sec.482 of Crl.P.C. praying for quashing the entire prosecution proceedings and also the order directing issue of warrant.

4. As per the provisions in Travancore-Cochin Hindu Religious Institutions Acts and the Rules framed thereunder, the Travancore Devaswom Board is normally represented by its Secretary in legal proceedings but in this case the President and Members are shown as representing the Devaswom Board. Prima facie, there was no jurisdiction on the part of the Magistrate to issue warrant for filing a vakalath on behalf of 6th accused. The question for consideration is whether the prosecution itself is sustainable.

5. It is submitted for the petitioners that appam and aravana are offerings in the Sabarimala Temple part of the religious rituals and practices followed by the devotees. The distribution of appam and aravana to the devotees as prasadam of the offerings and remittance of money by the devotees for conducting the said offerings do not amount to ‘sale’ as defined in the Prevention of Food Adulteration Act. The offerings made by the devotees and the distribution of prasadam in any form including appam and aravana do not constitute a commercial transaction to bring it under the definition of ‘sale’ and so the prosecution is ill-advised.

6. On behalf of the State, it is pointed out by the learned Public Prosecutor that even a sale to the Food Inspector for the purpose of analysis will be a sale and hence the prosecution is maintainable.

7. It is averred in the complaint petition, a copy of which is produced as annexure I that a substantial of ghee had been stored in four tanks and the Superintendent told the Food Inspector that it was fo